Tag Archives: Ashby Jones

And So, It Begins…

Ashby Jones at WSJ:

This just in: Virginia federal judge Henry Hudson on Monday ruled that he’ll let the state of Virginia’s challenge to the landmark health care law passed in March go forward, at least for the time being. Click here for the early Reuters story; here for the 32-page opinion.

The Department of Health and Human Services had moved to dismiss the lawsuit, which was filed in March (click here for the complaint), shortly after the passage of the law. But Judge Hudson on Monday denied the motion.

The ruling represents a setback that will force the Obama administration to mount a lengthy legal defense of the law. The suit, filed by Virginia Attorney General Ken Cuccinelli (pictured), alleges that the law’s requirement that its residents have health insurance violates the Commerce Clause of the Constitution.

Virginia’s lawsuit is one of several trying to undo the health-care law. Another large one was filed in a Florida federal court by a handful of state attorneys general.

Christopher Weber at Politics Daily:

Cucinelli argues on his website that “buying health insurance can be said to be an act in commerce. However, if someone doesn’t buy insurance, they are by definition not engaging in commerce. This legislation greatly oversteps the Commerce Clause.”


HHS Secretary Kathleen Sebelius minimized the importance of the judge’s decision, calling it just a “procedural step,” according to the Associated Press.


The new law, the judge commented, “radically changes” health care coverage in the country.  In passing it, he added, Congress broke new ground and extended “Commerce Clause powers beyone its current high watermark.”  Both sides, the decision said, have turned up prior rulings, but they are “short of definitive.”

“While this case raises a host of complex constitutional issues,” the judge wrote, “all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decison not to participate in interstate commerce” — that is, a private decision not to buy health insurance.  “Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue…Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this stage that the [Virginia] complaint fails to state a cause of action….Resolution of the controlling issues in this case must await a hearing on the merits.”

Philip Klein at The American Spectator

Todd Gaziano and Robert Alt at Heritage:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED.  Indeed, we think Virginia ultimately should win on the merits, but it is even easier to show that the correct form of the argument was set forth in the complaint.  Nevertheless, unless the district court’s jurisdictional rulings are overturned, Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Michelle Malkin

Ed Morrissey:

Expect the Left to go after Judge Hudson.  George W. Bush appointed him to the federal bench in 2002, following a career in the state bench and also in the US Marshal Service as director during Bush 41’s administration.  The Right showed no reluctance to point out Susan Bolton’s appointment by Bill Clinton, and turnabout is not just fair play but de rigueur by now.

It matters little, anyway.  Virginia wasn’t the only state preparing a challenge to this law, nor was it even first to file a challenge.  This law will go to the Supreme Court from many directions, and there are more than enough constitutional grounds for judges to allow hearings on it, regardless of what Pete Stark thinks.

Besides, Hudson only refused to dismiss the lawsuit.  He hasn’t yet ruled on any of the arguments in the case, except to rule that Virginia has a case to argue that the federal government overreached.  What we know now is that at least one court will hear that case — and that’s the first step to checking the power of Washington.

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The Past Is Not So Past, After All

Shaila Dewan at NYT:

In late April in a courthouse in Madison County, Ala., a prosecutor was asked to explain why he had struck 11 of 14 black potential jurors in a capital murder case.

The district attorney, Robert Broussard, said one had seemed “arrogant” and “pretty vocal.” In another woman, he said he “detected hostility.”

Mr. Broussard also questioned the “sophistication” of a former Army sergeant, a forklift operator with three years of college, a cafeteria manager, an assembly-line worker and a retired Department of Defense program analyst.

The analyst, he said, “did not appear to be sophisticated to us in her questionnaire, in that she spelled Wal-Mart, as one of her previous employers, as Wal-marts.”

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

In the Madison County case, the defendant, Jason M. Sharp, a white man, was sentenced to death after a trial by a jury of 11 whites and one black. The April hearing was the result of a challenge by defense lawyers who argued that jury selection was tainted by racial discrimination — a claim that is difficult to prove because prosecutors can claim any race-neutral reason, no matter how implausible, for dismissing a juror.

While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.

An analysis of Jefferson Parish, La., by the Louisiana Capital Assistance Center found that from 1999 to 2007, blacks were struck from juries at more than three times the rate of whites.

Ashby Jones at Law Blog at WSJ:

In 1986, the U.S. Supreme Court ruled that if a pattern of discrimination emerged in a lawyer’s use of peremptory challenges during jury selection, a judge could require the lawyer to give a race-neutral reason for why the juror was dismissed.

But is that ruling, Batson v. Kentucky, and those that followed it, doing enough to keep racism out of the jury-selection process?

That’s the fundamental question asked in this NYT article out Wednesday, which examines the prevalence — and absence — of blacks on juries in the South.

According to the story:

[T]he practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.

Part of the problem, reports the NYT, concerns a opinion following Batson in which the Supreme Court said that the nonracial reasons for peremptory strikes don’t have to be “persuasive, or even plausible.” Rather, it is up to the judge to decide if there was deliberate discrimination.

That is a high bar, defense lawyers say. In Tennessee and North Carolina, for instance, there has never been a successful reversal based on Batson.

“Anybody with any sense at all can think up any race-neutral reason and get away with it,” said Stephen B. Bright, a capital defense lawyer in Atlanta.

bmaz at Emptywheel


It’s incredibly depressing to know that in large swaths of the country, the basic mechanisms for enforcing Jim Crow — voter disenfranchisement, targeted policing of majority-black areas, and jury stacking — are alive and well. For a huge number of African-Americans, the criminal justice system exists mainly as a blunt object of social control. Moreover, because convicts are thoroughly stigmatized in the eyes of the public, it is frustratingly hard to do anything about it.

Mark Kleiman:

Hard to say which is the more distressing aspect of the latest study on Southern prosecutors’ abuse of the peremptory-challenge process to create all-white, or nearly all-white, juries: the fact that official racial bias is still a fact of Confederate life, or the fact that prosecutors – officers of the court, sworn to uphold the Constitution – routinely cheat, lie about it, and get away not just without having convictions thrown out but without any sort of professional stigma. In some offices, junior prosecutors get explicit training in how to successfully violate the Constitution and deceive the court (which seems, too often, more than willing to be deceived.

In theory, prosecutors pursue justice within the constraints of the law; too often, in practice, they’re just looking to carve notches in their briefcases.

Matthew Yglesias:

One way of dealing with these results would be to more strictly define what a “race-neutral” reason for rejecting a juror is, especially in those jurisdictions or with those prosecutors where the juries really are especially skewed in favor of white jurors. But the system we have, where prosecutors and defense attorneys have a huge role to play in jury selection isn’t necessarily the right one, or the one that other countries use. As Kevin Drum suggests, we could just pick 12 people at random and let judges ensure that no one has a really blatant reason for not serving.

This is just another weird part of our justice system — like electing judges, widespread use of exclusionary rules, the existence of for profit bails bondsmen, our huge number of prison inmates or one-sided expert witnesses — that we take as totally normal, but are actually pretty weird in the international context. Alas, I hardly see legal reformers using “but they do it differently over there” as a successful rallying cry.

Kevin Drum:

Most racially-inspired problems are hard to solve, but in this case there’s a pretty easy solution: just eliminate the voir dire process entirely. Pick 12 people at random, let the judge interview them and eliminate anyone who’s obviously unqualified or has a conflict of interest, and that’s that. You have your jury. Not only would this eliminate the most obvious source of racial bias, but it would have plenty of other positive effects too. It would reduce the number of jurors that courts need to summon, for example. And it would speed up trials. I sat on a drunk driving case once where the jury selection process took nearly as long as the trial itself because the defense attorney was desperately trying to eliminate anyone who might not be entirely sympathetic to a middle-aged guy who got behind the wheel after he’d had a few too many and started weaving around the road. It was a waste of our time, a waste of the judge’s time, and a waste of taxpayer money. (And we convicted the guy anyway.)

This is the way jury selection works in Britain, and guess what? Justice seems to be served just fine. The only downside, I think, is that John Grisham wouldn’t have been able to write his best book. I can live with that.

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Filed under Race, The Constitution

Go Patent Yourself!

The Economist:

Since the decoding of the human genome, biotechnology companies have claimed that by matching a person’s genetic make-up with specialised treatments, they can tailor drugs to maximise benefits and minimise side effects. Alas, researchers have discovered that the link between a given person’s genetic make-up and specific diseases is much more complex than they had hoped. The tantalising vision remains out of reach.

A rare exception has been the success that Myriad Genetics, an American firm, has had with two genes called BRCA1 and BRCA2. Certain versions of these genes, it has been shown, are associated with a high risk of breast and ovarian cancer. The University of Utah has patented the genes and licenses them to Myriad. The firm uses that exclusivity to create expensive genetic tests for cancer risk which only it offers for sale (the patents and licensing conditions are different outside the United States).

The BRCA patents have long frustrated medical researchers, cancer lobbyists and legal activists. They claim that the firm’s grip on the two genes unlawfully stifles both innovation and basic science. Given the history of patent rulings in America, that has been a fringe argument—until now.

On March 29th the New York District Court made a ruling that, taken at face value, turns America’s approach to the patent protection of genes on its head. A coalition led by the American Civil Liberties Union (ACLU) had challenged the very basis of Myriad’s patents. The nub of the case was this question: “Are isolated human genes and the comparison of their sequences patentable things?”

Until now, the answer had been “Yes”. But Robert Sweet, the presiding judge, disagreed, at least as far as the BRCA genes are concerned. After weighing up Myriad’s arguments, he ruled: “It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issues directed to ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.” Mr Sweet reasoned that DNA represents the physical embodiment of biological information, and that such biological information is a natural phenomenon.

Genome Web:

The ACLU’s and PUBPAT’s lawsuit against Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the BRCA genes, as well the U.S. Patent and Trademark Office (USPTO), charged that the challenged patents are illegal and restrict both scientific research and patients’ access to medical care, and that patents on human genes violate the First Amendment and patent law because genes are “products of nature.”

The specific patents that the ACLU had challenged are on the BRCA1 and BRCA2 genes. Mutations along the BRCA1 and 2 genes are responsible for most cases of hereditary breast and ovarian cancers. The patents granted to Myriad give the company the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes.

William L. Warren, partner at Sutherland Asbill & Brennan, believes this is a “poor decision that may have negative short-term implications for financing in the biotechnology sector, and hence the development of new diagnostics and therapeutics, until it is overturned by the U.S. Court of Appeals for the Federal Circuit in the next one to two years. Certainly, the sequencing of genes and disease-associated mutations for use in developing diagnostic probes and assays provides useful nonnaturally occurring subject matter that should qualify for patentability under the statute.

“While native genes in the body are originally products of nature, isolating portions of the DNA in order to perform a diagnosis transforms the DNA structurally and functionally into patentable subject matter,” he continues. “The isolated DNA has been markedly changed to become a useful product, even though it carries some of the same information as the native gene.

“Whether through the progress of scientific knowledge and techniques the isolation of such DNA fragments becomes routine or obvious is a separate question, which was not at issue in this case.”

Megan Carpentier at The Washington Independent

Ronald Bailey at Reason:

GenomeWeb quotes ACLU attorney Chris Hansen as saying:

“Today’s ruling is a victory for the free flow of ideas in scientific research. The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.”

Hansen is making the argument that gene patents have created an anti-commons that is impeding important research. But is that so? I looked into the issue three years ago and could find little empirical support for the …

… concern that the over-proliferation of patents, instead of encouraging innovation, is stifling it. This argument achieved prominence in an influential 1998 article published in Science by two University of Michigan law professors, Michael A. Heller and Rebecca S. Eisenberg. Heller and Eisenberg worried that the privatization of biomedical research “promises to spur private investment but risks creating a tragedy of the anticommons through a proliferation of fragmented and overlapping intellectual property rights.”

By “anticommons,” they meant a situation in which the existence of a large number of intellectual property rights applicable to a single good or service unduly retards or even prevents its provision. The blockage to innovation would occur because of high transaction costs, the conflicting goals of various intellectual property owners, and cognitive biases in which owners overvalue their own patents, undervalue others’ patents, and reject reasonable offers.

As evidence for a biomedical anticommons, analysts regularly cite the high profile case of “probably the most hated diagnostics company,” Myriad Genetics.

As evidence against the existence of a research anti-commons, I cited a number of studies by the National Academy of Sciences and I further noted that …

… in 2006, Nature Biotechnology published a review (free registration required) of the academic literature on the existence of a research anticommons. The review concluded that “among academic biomedical researchers in the United States, only one percent report having had to delay a project and none having abandoned a project as a result of others’ patents, suggesting that neither anticommons nor restrictions on access were seriously limiting academic research.” Worryingly, the review noted there was evidence that secrecy was growing among academic researchers. However, patent issues do not seem to be fueling this secrecy. One study suggested that increased academic research secrecy arises chiefly from concerns about securing scientific priority (scientific competition) and the high cost and effort involved in sharing scientific materials and data.

In 2007, the American Association for the Advancement of Science (AAAS) released a report, International Intellectual Property Experiences: A Report of Four Countries, which surveyed thousands of scientists in the U.S., Germany, the U.K. and Japan to assess their experiences in acquiring, using, or creating intellectual property. The AAAS study found “very little evidence of an ‘anticommons problem.'” As Stephen Hansen, the director of the AAAS study, noted in a press release, “All four studies suggest that intellectual property rights had little negative impact on the practice of science.”

Perhaps there is newer and better evidence for a research anti-commons. I will look into it again and report back.

Daniel McCarthy at The American Conservative:

Biotech businesses and their scientists say the decision will stifle research, destroy incentives for product development, and grow government by leaving federally supported universities as the only institutions willing to undertake further genetic studies. None of this rings true. No doubt holding legal monopoly over a part of a human being is more lucrative for any firm than having to compete with other companies in developing biotechnology, but it is not necessarily best for patients. Other industries do just fine in terms of innovation, and much better in terms of cost control, without being able to patent their consumers.

I think this paragraph from the New York Times‘ story gets at the nub of the matter:

[The company] sells a test costing more than $3,000 that looks for mutations in the two genes to determine if a woman is at a high risk of getting breast cancer and ovarian cancer. Plaintiffs in the case had said Myriad’s monopoly on the test, conferred by the gene patents, kept prices high and prevented women from getting a confirmatory test from another laboratory.

Considering the amounts of money at stake in the principle, we’ll be hearing much more about this in months to come.

Josh Rosenau at Science Blogs:

This does not invalidate patents on organisms with modified genes or genomes, nor does it invalidate the act of modifying a gene in order to insert it into an organism. This does not, by my reading, set up Monsanto’s genetically modified Roundup Ready crops to lose patent protection, though it may free up competitors to develop similar genes, and may give farmers an easier way to protect themselves against a claim when Monsanto asserts patent violations because of crosspollination.

The court was asked to consider the chilling effect on research produced by patents for naturally occurring genes. Fortunately, the decision seems to have avoided that line of argument, as it opens a massive can of worms. In general, I’m inclined to oppose patents and copyright laws that restrict research, artistic development, medical care, or other humanitarian services. On the other hand, I don’t think that’s a call judges ought to be making. I’d rather see the laws themselves fixed when such chilling effects are seen. This judge’s ruling fired a shot across the bow of lawmakers about the abuses of genetic patents, and one hopes lawmakers will listen.

Given the sweeping victory on a summary judgment motion, the ACLU is understandably elated. “We are extremely gratified by this groundbreaking decision,” said Sandra Park, staff attorney with the ACLU Women’s Rights Project. “This is the beginning of the end to patents that restrict women’s access to their own genetic information and interfere with their medical care.” We can hope so. The appeals are inevitable, and are headed toward a notably pro-corporate and anti-woman Supreme Court, so there’s no guarantee that this ruling will hold up, but it’s a good first step.

As John Ball, executive vice president of the American Society for Clinical Pathology put it: “It’s good for patients and patient care, it’s good for science and scientists. It really opens up things.”

Katherine Harmon at Scientific American

Ashby Jones at WSJ Law Blog:

Peter Meldrum, Myriad’s chief executive, said the company will appeal. “I don’t believe that the final outcome of this litigation will have a material impact on Myriad’s operations,” he said. “We have 23 patents relating to BRCA genes, and this litigation only involves seven of those 23 patents.

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Filed under Health Care, Science, The Constitution

John Paul, Without George And Ringo

Jeffrey Toobin in The New Yorker:

John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”

Ever since last fall, when it emerged that Stevens had hired only one law clerk for the next year, instead of his customary four, there has been growing speculation that he will soon retire. Since 1994, Stevens has been the senior Associate Justice and so has been responsible for assigning opinions when the Chief Justice is not in the majority. He has used that power to build coalitions and has become the undisputed leader of the resistance against the conservatives on the Court. “For those fifteen years, John Stevens has essentially served as the Chief Justice of the Liberal Supreme Court,” Walter Dellinger, who was the acting Solicitor General in the Clinton Administration and is a frequent advocate before the Court, says. In Stevens’s absence, leadership of the Court’s liberals would fall, by seniority, to Ginsburg, but she is also elderly and has suffered from a range of health problems. Even if President Obama appointed a like-minded replacement for Stevens, that person, while taking his seat, would not fill his role.

Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.”

So has Stevens. His positions have evolved on such issues as civil rights and the death penalty, and he has led the Court’s counteroffensive against the Bush Administration’s treatment of the detainees at Guantánamo Bay. And, as Stevens’s profile has risen, and his views have moved left, so, too, has criticism of him from conservatives reached a higher pitch. “From the beginning of his time as a Justice, you could see Stevens’s roots in the New Deal Court and his willingness to justify an expanding welfare state,” Richard Epstein, a libertarian-leaning law professor at New York University, said. “On these issues, he’s been consistent and consistently wrong about everything—and highly influential.”

Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.

But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight.


How long will Stevens remain on the Court? Good genes (one of his older brothers practiced law until he was ninety-one), a happy home, plenty of exercise, and even more luck could allow Stevens to keep up the fight into his tenth decade. Last December, he had lunch with Peter Isakoff, a Washington lawyer who was one of his early Supreme Court law clerks. “He had just played tennis that morning—singles!—and I was just kind of amazed,” Isakoff recalled. “And so I asked him, ‘Do you still run?’ And he looked at me and said, ‘Well, how else are you going to get to the ball?’ ”

With the election of Barack Obama, the question of Stevens’s retirement has become more pressing. Even though Stevens was appointed by a Republican President, many assume that he would never willingly have turned his seat over to George W. Bush. I asked Stevens about his plans.

“Well, I still have my options open,” he said. “When I decided to just hire one clerk, three of my four clerks last year said they’d work for me next year if I wanted them to. So I have my options still. And then I’ll have to decide soon.” On March 8th, he told me that he would make up his mind in about a month.

Stevens needs a little more than two years to surpass Douglas for the longest tenure on the Court, and about one year to equal Oliver Wendell Holmes as the oldest serving Justice, but he said that those numbers were irrelevant. “I’ve never felt any interest in trying to break any records,” he said. He has had a closeup view of the complexities of retirement decisions for Supreme Court Justices. William Douglas, whom Stevens replaced, stayed on the Court after a series of strokes that incapacitated him; his colleagues awkwardly forced his resignation. On the other hand, O’Connor left the Court in good health, which continues, and has watched her successor, Alito, undo part of her legacy.

Did it matter which President named his replacement?

“I’d rather not answer that,” Stevens said. The Republican Party may have moved right since 1975, but Ford himself never displayed anything but pride in his choice of Stevens for the Court. In 2005, a year before his death, Ford wrote, in a tribute to Stevens, “For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the U.S. Supreme Court.”

As for Obama, Stevens said, “I have a great admiration for him, and certainly think he’s capable of picking successfully, you know, doing a good job of filling vacancies.” He added, “You can say I will retire within the next three years. I’m sure of that.”

He will not be seen again, under any circumstances, at a State of the Union address. “I went to a few of them when I was first on the Court, but I stopped,” Stevens told me. “First, they are political occasions, where I don’t think our attendance is required. But also it comes when I am on a break in Florida. To be honest with you, I’d rather be in Florida than in Washington.”

April may turn out to be a time of high drama at the Supreme Court, even if nothing of great significance happens on the bench.  On Tuesday, April 20, when the Court gathers to hear a case involving a fairly minor procedural point of criminal law, Justice John Paul Stevens will be celebrating his 90th birthday.  He will thus become the second oldest Justice ever to have served (Justice Oliver Wendell Holmes sat until he was 90 and 10 months; he retired on January 12, 1932).

But, April, it now appears, could also be the month when Justice Stevens makes up his mind whether to retire this year, or to go on serving.  In an interview apparently held on March 8, Stevens told a magazine reporter that he would make up his mind in about a month.  “I’ll have to decide soon,” he was quoted as saying. (The reporter, Jeffrey Toobin of New Yorker Magazine, has this lengthy article on Stevens’ career in the March 22 edition.)

Stevens might not make any public announcement of his plan until after the Court has completed hearing arguments for the Term; that will be on April 28.  If he should notify the White House that he is retiring, that fact almost certainly would leak out promptly, so the news might not wait until Stevens made a formal statement himself.  In the meantime, he is likely to keep his own counsel on the issue.

Tony Mauro at The BLT:

Toobin’s extensive profile of Stevens charts his youth and career, and his evolution on the Court from a Republican moderate to the leader of the Court’s liberal wing, such as it is. Asked if the Court has moved to the right, Stevens said, “There’s no doubt. You don’t have to ask me that. Look at Citizens United.” He was referring to January’s decision in Citizens United v. Federal Election Commission, which overturned precedent to rule that corporate expenditures in election campaigns were protected by the First Amendment. Stevens went on to say there are dozens of decisions he is “very unhappy with,” specifically mentioning the D.C. v. Heller gun rights case of 2008 as well as Bush v. Gore in 2000.

On another current topic, Stevens told Toobin that he does not attend State of the Union addresses in part because “they are political occasions, where I don’t think our attendance is required. But it also comes when I am on a break in Florida. To be honest with you, I’d rather be in Florida than in Washington.” When the Court is not in session, Stevens spends some of his time at his Ft. Lauderdale condominium.

American Constitution Society:

In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are “dozens” of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

Stevens said the Court has lurched rightward since he joined it in 1975. “You don’t have to ask me that,” Stevens responded to Toobin’s question on the tilt of the high court. “Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn’t that create the likelihood that people will think you’re not following the rules?”

Ashby Jones at WSJ:

Even more than Chief Justice John Roberts or the irrepressible Justice Antonin Scalia, Justice Stevens has in recent days become the Justice To Watch, namely because rumors continue to swirl that the 89-year old will soon step down, paving the way for another President Obama appointment. Toobin’s piece is a good one, providing insight into the thoughts and inner workings of the fourth-longest-serving justice in the court’s history

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Cuomo V. Lewis

Dan Fitzpatrick and Kara Scannell at WSJ:

New York Attorney General Andrew Cuomo filed civil securities fraud charges against former Bank of America CEO Kenneth Lewis and former Chief Financial Officer Joseph Price, alleging they decided not to disclose mounting losses at Merrill Lynch & Co. before getting shareholder approval to acquire the Wall Street firm.

Separately, the bank and the Securities and Exchange Commission reached a $150 million settlement on allegations of misleading investors during the Merrill deal. The settlement requires a judge’s approval.

Ashby Jones at WSJ:

To recap: Shareholders approved BofA’s purchase of Merrill on Dec. 5, 2008, not knowing that Merrill had accumulated more than $16 billion in “actual losses” for the fourth quarter of 2008, according to the attorney general. The bank didn’t say anything about the mounting losses until the U.S. in January 2009 provided the bank with an additional $20 billion to absorb Merrill.

“We believe bank management understated the Merrill Lynch losses to shareholders to get shareholders to approve the deal then overstated their ability to terminate the agreement to get $20 billion from federal government,” Cuomo said on a conference call earlier Thursday.

After the shareholder vote, Bank of America executives went to U.S. officials and said they might back away from the purchase because the losses were greater than they expected. But Mr. Cuomo said Wednesday that “actual losses” were only $1.4 billion greater than at the time of the vote.

“That is just a fraud,” he said.

The bank, in a statement on Wednesday, called the charges “regrettable” and disappointing and said it would vigorously defend against them. Debevoise’s Mary Jo White, Lewis’s attorney, said in a statement that Cuomo’s decision to sue was “a badly misguided decision without support in the facts or the law.” Lawyers for Price said the attorney general’s allegations were “flatly contrary to the evidence.”

Stephen Spruiell at NRO:

It seems that AG Cuomo is following in the populist footsteps of his predecessor, Eliot Spitzer. This case would seem to raise similar issues to those raised by the immunity-for-telecoms debate, in which the government protected the phone companies from lawsuits over their cooperation with various terrorist surveillance activities. Again, we have a lawsuit filed against a company who claimed to be acting on government orders and in the best interest of the country. Only this time, instead of the ACLU, it’s another government official bringing the charges. Spitzer’s anti–Wall Street cred paid dividends, until he was brought down by his own hubris. Cuomo is rumored to be just as ambitious; we’ll see if the same bet pays off twice.

Tom Robbins at Village Voice:

It’s the first charges brought against any of the major players involved in the massive 2008 federal banking bailout — a move that is sure to play well before political audiences everywhere other than Wall Street.

With federal TARP watchdog Neil Barofsky at his side during a morning telephone presser, Cuomo charged that Lewis and former CFO Joseph Price concealed massive losses at Merrill Lynch in December, 2008 in order to accommodate the B of A merger with the ailing investment firm.

According to Cuomo’s tick-tock of the alleged scheme, Lewis and Price first hid “disastrous actual losses” by Merrill Lynch of $16 billion in order to gull shareholders into approving the deal. They then doubled back and “threatened” federal officials that they could go belly up ala Lehman Brothers if they didn’t receive emergency federal aid. “As a result of their efforts, Bank of America received $20 billion in taxpayer aid,” charged Cuomo.

Lewis called the lawsuit “badly misguided.”

Asked why it’s a civil, not a criminal case, deputy AG David Markowitz left that door open. “We have an ongoing investigation, we are only announcing civil charges today.”

While tackling the bankers, Cuomo had to duck a couple of questions about mundane political matters, such as his pending candidacy for governor. A few hours before the presser, David Paterson — the current governor who would like to remain as such — told John Gambling on WOR that would-be candidate Cuomo was hiding, using the old “rose garden strategy” to avoid weighing in on tough questions. What did the AG think about that? asked the Daily News’ Glenn Blain.

Cuomo promptly hit tune G2 on the AG jukebox: “I am Attorney General of the State of New York. I was elected to do a job. I get paid to do that job. That is the job I am doing. I am confronting the issues. Today is a good example of this. This is tax dollars we are talking about..” etcetera.

Zachary Roth at TPM

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Filed under Economics, Political Figures, The Crisis

“The Continuation Of The Scheme”

Edward Collmore at Philly.com:

Researcher Lorianne Updike Toler was intrigued by the centuries-old document at the Historical Society of Pennsylvania.

On the back of a treasured draft of the U.S. Constitution was a truncated version of the same document, starting with the familiar words: “We The People. . . .”

They had been scribbled upside down by one of the Constitution’s framers, James Wilson, in the summer of 1787. The cursive continued, then abruptly stopped, as if pages were missing.

A mystery, Toler thought, until she examined other Wilson papers from the Historical Society’s vault in Philadelphia and found what appeared to be the rest of the draft, titled “The Continuation of the Scheme.”

The document – one of 21 million in the Historical Society’s collection – was known to scholars, but probably should have been placed with the other drafts, said constitutional scholar John P. Kaminski, director of the Center for the Study of the American Constitution in the history department at the University of Wisconsin-Madison.

“This was the kind of moment historians dream about,” said Toler, 30, a lawyer and founding president of the Constitutional Sources Project (www.ConSource.org), a nonprofit organization, based in Washington, that promotes an understanding of and access to U.S. Constitution documents.

“This was national scripture, a piece of our Constitution’s history,” she said of her find in November. “It was difficult to keep my hands from trembling.”

As other researchers “realized what was happening, there was a sort of hushed awe that settled over the reading room,” Toler said. “One of them said the hair on her arms stood on end.”

Two drafts of the Constitution in Wilson’s hand had been separated from his papers long ago. One of them included the beginning of still another draft and was apparently seen as part of a single working version, instead of a separate draft.

Toler said “The Continuation of the Scheme,” including its provisions about the executive and judiciary branches, completes that draft, making it a third.

Ashby Jones at WSJ:

The backstory goes like this: It turns out that two drafts of the Constitution in Wilson’s hand had been separated from his papers long ago. One of them included the beginning of still another draft. Toler told the Inquirer that “The Continuation of the Scheme,” including its provisions about the executive and judiciary branches, completes that draft, making it a third.

She “found a document that was sort of buried in its right place, but not taken out by an archivist for special treatment,” said Kaminski, the constitutional scholar. “This is a valuable document. It is in Wilson’s hand, and it was in Wilson’s papers, where it should have been.”

Wilson, who lived in Philadelphia, was selected July 24, 1787, with four other members of the Constitutional Convention to serve on the Committee of Detail.

The committee – which also had John Rutledge, Edmund Randolph, Nathaniel Gorham, and Oliver Ellsworth – used 28 resolutions passed by members of the convention to flesh out the Constitution.

They finished their work and presented it Aug. 6, 1787, to the Constitutional Convention. It included Wilson’s famous “We the People” beginning.

Jonathan Turley:

This only the third such draft in Wilson’s hand. Wilson served with John Rutledge, Edmund Randolph, Nathaniel Gorham, and Oliver Ellsworth as a member of the important Committee of Detail, which refined the words of the Constitution.

Brent Greer:

Oh, and before anyone tries to weave alternate meanings into the word “scheme,” please keep in mind it was a word commonly used in the 1700s that meant “plan.” Not as the Huffingtons, Bradys and others would have people think that something evil was afoot.

Overall, this is way cool news..

Brian Kelley:

Nope, no mention of rights to single-payer health care or abortion in this one either. (Via Drudge.)

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Filed under History, The Constitution

People Who Need People Have A Charter In Delaware


Image from Corporations8MyBaby

Jess Bravin at WSJ:

During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.


In the Wall Street Journal, Jess Bravin scrutinizes a comment made by Justice Sotomayor during the Citizens United oral argument – her first session on the Court: “[judges] created corporations as persons, gave birth to corporations as persons…There could be an argument made that that was the court’s error to start with.” Bravin reads in these words hesitation to grant expansive corporate rights and a hint of her vote in Citizens United. By contrast, questions asked by members of the Court’s conservative majority during the Citizens United argument suggest they believe corporations have broad First Amendment rights.  Bravin observes that this position is consistent with the Court’s steady expansion of corporate rights into the 1970s, though the Court’s more recent precedents are less decisive.

Ashby Jones at the WSJ Law Blog:

“I don’t want to draw too much from one comment,” says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it “doesn’t give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded.”

For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. But today, it’s “just complete confusion” over which rights corporations can claim, says Prof. William Simon of Columbia Law School.

In any event, on today’s court, the direction Justice Sotomayor suggested is unlikely to prevail. During arguments, the court’s conservative justices seem to view corporate political spending as beneficial to the democratic process. “Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election,” Justice Anthony Kennedy said during arguments last week.

But Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg, who, evoking the Declaration of Independence, said during the Citizens United case: “A corporation, after all, is not endowed by its creator with inalienable rights.”

James Joyner:

Both of these directions are arguably activist; they’re certainly a violation of the stare decisis tradition.  But corporate personhood is a bedrock principle of American corporate law; the only question is how far it extends.  While being gradually limited in scope in recent years, the premise has never been seriously questioned by the Supreme Court.  Campaign finance law, conversely, has always been a balancing test, with the Court both recognizing that donating to candidates and political advertising have qualities of speech and yet deferring to the public policy interest in reigning in the appearance of undue influence.


Eugene Volokh


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Filed under Economics, Go Meta, Supreme Court